BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1176       Hearing Date:    May 10, 2016    
          
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          |Author:    |Cooper                                               |
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          |Version:   |May 4, 2016                                          |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
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                             Subject:  Theft:  Firearms



           HISTORY
          
          Source:   Author

          Prior Legislation: SB 452 (Galgiani) - died Senate  
          Appropriations, 2015

          Support:  Law Center to Prevent Gun Violence; California Peace  
          Officers' Association; 
                    Coalition Against Gun Violence, a Santa Barbara County  
                    Coalition; National Rifle Association; California  
                    State Sheriffs' Association 

          Opposition:American Civil Liberties Union of California;  
                    California Attorneys for Criminal Justice; California  
                    Public Defenders Association


          Assembly Floor Vote:                    Not Relevant
                                               
          PURPOSE
          
          The purpose of this legislation is to: (1) clarify that theft of  
          a firearm is grand theft and is punishable as a felony, as  
          specified; (2) provide that every person who buys or receives a  







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          stolen firearm is guilty of an alternate felony/misdemeanor  
          offense, as specified; and, (3) add the following misdemeanor  
          theft of a firearm (Penal Code  490.2) and receipt of stolen  
          property to offenses for which a conviction results in a 10-year  
          prohibition on possession of a firearm.  

          This bill would provide that it would become effective only upon  
          approval of the voters, and would provide for the submission of  
          this measure to the voters for approval at the next statewide  
          general election.
          
          Firearm Theft
          
          Existing law provides that every person who feloniously steals,  
          takes, carries, leads, or drives away the personal property of  
          another is guilty of theft, as specified.  (Penal Code  484.)

          Existing law defines "grand theft" as any theft where the money,  
          labor, or real or personal property taken or when the property  
          is taken from the person of another is of a value exceeding  
          $950.  (Penal Code  487(a) and (c).)

          Existing law provides that grand theft is committed when the  
          money, labor, or real or personal property taken is of a value  
          in excess of $950, except as specified.  (Penal Code  487(a).)

          Existing law provides that, notwithstanding the default value of  
          $950 to establish grand theft, grand theft is committed in any  
          of the following cases:

                 When domestic fowls, avocados, or other farm crops are  
               taken of a value exceeding $250;
                 When fish or other aqua-cultural products are taken from  
               a commercial or research operation that is producing that  
               product of a value exceeding $250;
                 Where money, labor or property is taken by a servant or  
               employee from his or her principal and aggregates $950 or  
               more in any consecutive 12-month period;
                 When the property is taken from the person of another; 
                 When the property taken is an automobile, firearm,  
               horse, mare, gelding, bovine animal, caprine animal, mule,  
               jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or  
               pig;
                 When the property is taken from the person of another;  








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               or
                 When the property taken is an automobile and firearm.  

           (Penal Code  487(b) through (d).)

          Existing law states that if the grand theft involves the theft  
          of a firearm, punishable by imprisonment in the state prison for  
          16 months, or two or three years. (Penal Code  489(a).)  

          Existing law provides that grand theft is an alternate  
          felony-misdemeanor, punishable by imprisonment in the county  
          jail for up to one year, a fine of up to $1,000, or both, or by  
          a felony jail sentence of 16 months, two years or three years  
          pursuant to Penal Code Section 1170, subdivision (h), and a fine  
          of up to $10,000.  (Penal Code  489(b).)  

          Existing law provides that, notwithstanding Section 487, or any  
          other provision of law defining grand theft, obtaining any  
          property by theft where the value of the money, labor, real or  
          personal property taken does not exceed nine hundred fifty  
          dollars ($950) shall be considered petty theft and shall be  
          punished as a misdemeanor, except that such person may instead  
          be punished pursuant to subdivision (h) of Section 1170 if that  
          person has a prior conviction for a serious or violent felony or  
          an offense requiring registration pursuant to 290, as specified.  
           (Penal Code  490.2(a).) 

          This bill would make the theft of a firearm grand theft in all  
          cases, punishable by imprisonment in the state prison for 16  
          months, or 2 or 3 years. 
            
          Receipt of Stolen Firearm
          
          Existing law provides that any person who buys or receives any  
          property that has been stolen or that has been obtained in any  
          manner constituting theft or extortion, knowing the property to  
          be so stolen or obtained, or who conceals, sells, withholds, or  
          aids in concealing, selling, or withholding any property from  
          the owner, knowing the property to be so stolen or obtained,  
          shall be punished by imprisonment in a county jail for not more  
          than one year, or imprisonment pursuant to subdivision (h) of  
          Section 1170. However, if the value of the property does not  
          exceed nine hundred fifty dollars ($950), the offense shall be a  
          misdemeanor, punishable only by imprisonment in a county jail  








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          not exceeding one year, if such person has no prior convictions  
          for an offense specified in clause (iv) of subparagraph (C) of  
          paragraph (2) of subdivision (e) of Section 667 or for an  
          offense requiring registration pursuant to subdivision (c) of  
          Section 290.
          A principal in the actual theft of the property may be convicted  
          pursuant to this section. However, no person may be convicted  
          both pursuant to this section and of the theft of the same  
          property.  (Penal Code  496 (a).) 

          This bill provides that every person who buys or receives a  
          stolen firearm is guilty of an alternate felony/misdemeanor  
          offense punishable by imprisonment in the county jail for a  
          period of not more than one year, or by imprisonment in the  
          county jail pursuant to realignment, as specified. 

          Firearms Prohibition

          Existing law requires that firearms dealers obtain certain  
          identifying information from firearms purchasers and forward  
          that information, via electronic transfer to Department of  
          Justice (DOJ) to perform a background check on the purchaser to  
          determine whether he or she is prohibited from possessing a  
          firearm.  (Penal Code  28160-28220.)

          Existing law requires that, upon receipt of the purchaser's  
          information, DOJ shall examine its records, as well as those  
          records that it is authorized to request from the State  
          Department of Mental Health pursuant to Section 8104 of the  
          Welfare and Institutions Code, in order to determine if the  
          purchaser is prohibited from purchasing a firearm.  (Penal  
          Code  28220.)
          Current federal law provides that certain people are prohibited  
          from owning or possessing a firearm:

          Any person who:

                 Has been convicted in any court of, a crime punishable  
               by imprisonment for a term exceeding one year;
                 Is a fugitive from justice;
                 Is an unlawful user of or addicted to any controlled  
               substance, as defined; 
                 Has been adjudicated as a mental defective or who has  
               been committed to a mental institution;








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                 Being an alien -
               o      is illegally or unlawfully in the United States; or
               o      except as specified, has been admitted to the United  
                 States under a nonimmigrant visa, as defined;  
                 Has been discharged from the Armed Forces under  
               dishonorable conditions;
                 Having been a citizen of the United States, has  
               renounced his citizenship;
                 Is subject to a court order that -
                  o         was issued after a hearing of which such  
                    person received actual notice, and at which such  
                    person had an opportunity to participate;
                  o         restrains such person from harassing,  
                    stalking, or threatening an intimate partner of such  
                    person or child of such intimate partner or person, or  
                    engaging in other conduct that would place an intimate  
                    partner in reasonable fear of bodily injury to the  
                    partner or child; and
                               includes a finding that such person  
                      represents a credible threat to the physical safety  
                      of such intimate partner or child; or
                               by its terms explicitly prohibits the use,  
                      attempted use, or threatened use of physical force  
                      against such intimate partner or child that would  
                      reasonably be expected to cause bodily injury; or
                 Has been convicted in any court of a misdemeanor crime  
               of domestic violence.  

          (18 USC  922(g).)

          Current California law provides that certain people are  
          prohibited from owning or possessing a firearm, including:

          Lifetime Ban
          
                 Anyone convicted of a felony;
                 Anyone addicted to a narcotic drug;
                 Any juvenile convicted of a violent crime with a gun and  
               tried in adult court;
                 Any person convicted of a federal crime that would be a  
               felony in California and sentenced to more than 30 days in  
               prison, or a fine of more than $1,000; 
                 Anyone convicted of certain violent misdemeanors, e.g.,  
               assault with a firearm; inflicting corporal injury on a  








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               spouse or significant other, or brandishing a firearm in  
               the presence of a police officer.  

          (Penal Code  29800, 23515 and 29805.)

            Existing law provides that a violation of these provisions is  
          a felony.  (Id.)

          Ten Year Ban
          
          Anyone convicted of numerous misdemeanors involving violence or  
          threats of violence.  (Penal Code  29805.)

          Existing law provides that a violation of these provisions is a  
          wobbler, as specified.  (Id.)

          Five Year Ban
          
          Any person taken into custody, assessed, and admitted to a  
          designated facility due to that person being found to be a  
          danger to themselves or others as a result of a mental disorder,  
          is prohibited from possessing a firearm during treatment and for  
          five years from the date of their discharge.  (Welfare and  
          Institutions Code  8100 and 8103(f).)

            Existing law provides that a violation of these provisions is  
          a wobbler, as specified.  (Id.)

          Temporary Bans
          
          Persons who are bound by a temporary restraining order or  
          injunction or a protective order issued under the Family Code or  
          the Welfare and Institutions Code, may be prohibited from  
          firearms ownership for the duration of that court order.  (Penal  
          Code  29825.)

            Existing law provides that the violation of these provisions  
            is a wobbler or a misdemeanor, as specified.  (Id.)

          This bill would add the following misdemeanor offenses to those  
          for which a conviction results in a 10-year prohibition on  
          possession of a firearm: (1) theft of a firearm (Penal Code   
          490.2) and (2) receipt of stolen property, if the property is a  
          firearm (Penal Code  496).








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          This bill provides that the provisions of this legislation that  
          amend Proposition 47 (the firearm theft and receipt of a stolen  
          firearm penalty provisions) shall become effective only when  
          submitted to and approved by the voters at a statewide election.  
          This legislation further provides that a special election is  
          hereby called, to be held throughout the state on November 8,  
          2016. The special election shall be consolidated with the  
          statewide general election to be held on that date. The  
          consolidated election shall be held and conducted in all  
          respects as if there were only one election, and only one form  
          of ballot shall be used.  This legislation additionally provides  
          that the Secretary of State shall submit the specified portions  
          of this legislation to the voters for their approval at the  
          November 8, 2016, statewide general election.

          This bill calls an election within the meaning of Article IV of  
          the Constitution and states that it goes go into effect  
          immediately. 


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                          
          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  








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          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          
          1.  Proposition 47:  Effect of this Legislation 









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          Proposition 47, also known as the Safe Neighborhoods and Schools  
          Act, was approved by the voters in November 2014.  Proposition  
          47 reduced the penalties for certain drug and property crimes  
          and directed that the resulting state savings be directed to  
          mental health and substance abuse treatment, truancy and dropout  
          prevention, and victims' services.  The initiative reduced the  
          penalties for theft, shoplifting, receiving stolen property,  
          writing bad checks, and check forgery valued at $950 or less  
          from felonies to misdemeanors.  The measure limited the reduced  
          penalties to offenders who do not have prior convictions for  
          serious or violent felonies and who are not required to  
          registered sex offenders.   (See Legislative Analyst's Office  
          analysis of Proposition 47,  
          http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf.) 

          Grand Theft of a Firearm

          Proposition 47 added Penal Code section 490.2 which provides a  
          new definition for grand theft:  "Notwithstanding Section 487 or  
          any other provision of law defining grand theft, obtaining any  
          property by theft where the value of the money, labor, real or  
          personal property taken does not exceed nine hundred fifty  
          dollars ($950) shall be considered petty theft and shall be  
          punished as a misdemeanor ?.."  (Pen. Code,  490.2, subd. (a),  
          emphasis added.)  In other words, Proposition 47 put in a  
          blanket $950 threshold for conduct to be grand theft.   
          Previously, there were a number of carve-outs which made conduct  
          grand theft based on the conduct involved or the manner in which  
          the crime is committed or based on the value being less than  
          $950.  

          Because the new statute specifically states "notwithstanding  
          Section 487," it supersedes all of Penal Code section 487,  
          including subdivision (d)(2), which says that grand theft occurs  
          when the property taken is a firearm.  The question becomes  
          whether, notwithstanding newly-created Penal Code section 490.2,  
          theft of a firearm remains a felony.  

          The drafters of Proposition 47 state that they did not intend to  
          reduce the penalty for theft of a firearm and explain: 

               Proposition 47 maintained California's numerous gun  
               laws-the strictest in the country-enabling felony  
               prosecution for any and all criminal activity related  








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               to guns. This includes gun thefts regardless of the  
               value of the gun. Gun crimes are, by definition,  
               serious crimes. Proposition 47 is exclusively limited  
               to non-serious and nonviolent crimes. Additionally,  
               dozens of felony provisions related to gun crimes are  
               maintained by Proposition 47, including (but not  
               limited to): possession of a concealed stolen gun or  
               possession of a loaded stolen gun; use of a firearm to  
               facilitate any crime (including when the gun involved  
               is being stolen and theft is crime in question);  
               stealing guns from residences, stores during  
               non-business hours, or locked automobiles; taking a  
               firearm from the person of another with force or fear;  
               or possession of a concealed stolen weapon by a gang  
               member or possession of a gun by a felon.  

          (http://www.safeandjust.org/prop47faq.)
          A recent appellate court decision concluded otherwise in dicta.   
          (People v. Perkins (2016) 244 Cal.App.4th 129.)  In People v.  
          Perkins, supra, the defendant was convicted of burglary,  
          receiving stolen property, three counts of grand theft of a  
          firearm, and several other offenses.  He was sentenced to state  
          prison.  After California voters passed Proposition 47, the  
          defendant filed a petition for resentencing to convert some of  
          his offenses to misdemeanors.  (Id. at p. 132-133.)  The  
          petition was denied and he appealed.  The Court of Appeal did  
          not squarely address the issue of whether Proposition 47 reduced  
          the theft of a firearm to a misdemeanor when its value is less  
          than $950.  Rather, what was at issue in the case was the  
          adequacy of the petition.  The defendant actually had petitioned  
          only for resentencing on the receiving stolen property count  
          because the form provided by the superior court excluded the  
          option of petitioning for resentencing grand theft offenses.   
          (Id. at p. 136.)  In affirming denial of the petition without  
          prejudice, the court noted, "Proposition 47 added a new  
          provision, section 490.2, subdivision (a), which reclassifies  
          felony section 487, subdivision (d)(2) grand theft violations  
          into misdemeanors.  Thus, petitioner would be entitled to  
          resentencing on each conviction, provided he can meet his burden  
          of showing, separately for each firearm, that its value does not  
          exceed $950."  (Id. at p. 141.)  

          Whether Proposition 47 made theft of a firearm a misdemeanor is  
          clearly subject to interpretation and debate.  Given that the  








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          proponents contend that Proposition 47 did not change the  
          penalties for gun theft, clarifying the intent of the proponents  
          by stating that theft of a firearm remains a felony is seemingly  
          innocuous.  

          SHOULD THE LAW BE CLARIFIED TO EXPLICITLY STATE THAT THEFT  
          OF A FIREARM IS A FELONY?

          Receipt of Stolen Property: Firearm
    
          Proposition 47 amended Penal Section 496 to state:  "Every   
          person  who  buys  or  receives  any  property  that  has been  
          stolen or that has been obtained in any manner constituting  
          theft or extortion, knowing the property to be so stolen or  
          obtained, or  who  conceals,  sells,  withholds,  or  aids  in   
          concealing,  selling,  or  withholding any property from the  
          owner, knowing the property to be  so  stolen  or  obtained,   
          shall  be  punished  by  imprisonment  in  a  county jail for  
          not more than one year, or imprisonment pursuant to subdivision  
          (h) of Section 1170. However,  if the district attorney or the  
          grand jury determines that this action would be in the interests  
          of justice, the district  attorney or the grand jury, as the  
          case may be, may,  if the value of the property does not exceed  
          nine hundred fifty dollars  ($950),   specify  in  the   
          accusatory  pleading  that   the  offense shall  be  a   
          misdemeanor,  punishable  only  by  imprisonment  in  a  
          county jail not exceeding one  year,  if  such person has   
          no  prior convictions for an offense specified in clause  
          (iv) of subparagraph (C) of paragraph (2) of subdivision  
          (e) of Section 667 or for an offense requiring registration  
          pursuant to subdivision (c) of Section 290."   Unlike theft  
          of a firearm, pre-Proposition 47 receipt of a stolen  
          firearm was not a felony (it was a wobbler) and, thus, was  
          not a serious felony. (See Penal Code  1192.7.)  

          The court explains how Proposition 47 changed the receipt  
          of stolen property provision in the Penal Code,  

               Receiving Stolen Property  [punishment:  up  to one   
               year  in  jail].   If  the  value  of  the  property   
               received  does  not  exceed  $950,  section  496(a)   
               specifies  the  crime  is  a  misdemeanor.  Previously  
               section 496(a) gave the district attorney the  
               discretion to charge the crime as a misdemeanor if the  








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               property did not exceed $950; now the district  
               attorney must charge the crime as a misdemeanor if the  
               value of the property does not exceed $950.

          (http://www.courts.ca.gov/documents/Prop-47-Information.pdf) 
           

          This legislation would add a provision to the Penal Code making  
          receipt of a stolen firearm a wobbler.  

          SHOULD RECEIPT OF A STOLEN FIREARM BE A WOBBLER? 

          3.  Firearms Prohibitions for Misdemeanor Offenses

          As detailed above, current state and federal laws prohibit  
          persons who have been convicted of specific crimes from owning  
          or possessing firearms.  For example, anyone convicted of any  
          felony offense is prohibited for life from firearms ownership  
          under both federal and state law.  (18 U.S.C.  922(g); Penal  
          Code  29800.)  California goes further and imposes a 10-year  
          firearms prohibition on persons convicted of numerous  
          misdemeanor offenses that involve either violence or the threat  
          of violence.  (Penal Code  29805.)   Additionally, anyone who  
          has been found to be a danger to themselves or others due to  
          mental illness is subject to a five-year prohibition (Welfare  
          and Institutions Code  8100, 8103(f)), and people under  
          domestic violence restraining orders are subject to a  
          prohibition for the duration of that court order.  (Penal Code   
          29825.)

          According to a study published in the Journal of American  
          Medical Association: 

               Handgun purchasers with only 1 prior misdemeanor  
               conviction and no convictions for offenses involving  
               firearms or violence were nearly 5 times as likely as  
               those with no prior criminal history to be charged  
               with new offenses involving firearms or violence.

          (Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor  
          for Later Violent and Firearm Related Criminal Activity Among  
          Authorized Purchasers of Handguns. Journal of the American  
          Medical Association 1998; 280: 2083-2087.)









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          To this end, this bill would expand the number of misdemeanor  
          convictions resulting in a 10-year prohibition by adding theft  
          of a firearm and receipt of a stolen firearm.

          4.  California Constitutional Limitations on Amending a  
          Voter Initiative
          
          Because Proposition 47 was a voter initiative, the Legislature  
          may not amend the statute without subsequent voter approval  
          unless the initiative permits such amendment, and then only upon  
          whatever conditions the voters attached to the Legislature's  
          amendatory powers.  (People v. Superior Court (Pearson) (2010)  
          48 Cal.4th 564, 568; see also Cal. Const., art. II,  10, subd.  
          (c).)  The California Constitution states, "The Legislature may  
          amend or repeal referendum statutes.  It may amend or repeal an  
          initiative statute by another statute that becomes effective  
          only when approved by the electors unless the initiative statute  
          permits amendment or repeal without their approval."  (Cal.  
          Const., art. II,  10, subd. (c).)  Therefore, unless the  
          initiative expressly authorizes the Legislature to amend, only  
          the voters may alter statutes created by initiative.  

          As to the Legislature's authority to amend the initiative,  
          Proposition 47 states:  "This act shall be broadly construed to  
          accomplish its purposes.  The provisions of this measure may be  
          amended by a twothirds vote of the members of each house of the  
          Legislature and signed by the Governor so long as the amendments  
          are consistent with and further the intent of this act.  The  
          Legislature may by majority vote amend, add, or repeal  
          provisions to further reduce the penalties for any of the  
          offenses addressed by this act."   
          (http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws 
          1.pdf#prop47.)

          This bill provides that the Proposition 47 provisions go to the  
          voters for ratification. 

                                          
                                       - END -

          


           








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